WARNING:
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Bill.

This Bill will
remove superannuation from the list of 'allowable award matters'
set out in subsection 89A(2) of the Workplace Relations Act
1996.

As a consequence, the Australian Industrial
Relations Commission (AIRC) will not be permitted to prevent or
settle disputes about superannuation by making awards or orders or
maintain the settlement of such disputes by varying awards or
orders.

An amendment to subsection 89A(7) of the
Workplace Relations Act 1996 will preclude the AIRC from
making an 'exceptional matters order' about superannuation.(1)

The changes do not, however, prevent the making
of certified agreements or workplace agreements which deal with
superannuation entitlements.

Employers must currently comply with award
superannuation obligations as well as the requirements set out in
the Superannuation Guarantee legislation. Under the original
Workplace Relations and Other Legislation Bill 1996,
superannuation was not included in the list of 'allowable award
matters'. Amendments to the original Bill agreed upon with the
Australian Democrats, added superannuation to the list of
'allowable award matters.'

On 23 December 1997 the Full Bench of the AIRC
delivered a test case decision on the simplification of federal
awards. In essence this decision provides a guide to the list of
'allowable award matters' that can be dealt with by the AIRC under
the Workplace Relations Act 1996. It confirms that
disputes concerning superannuation can be dealt with by the AIRC.
In particular, the AIRC may arbitrate with reference to the
following aspects:

the relevant superannuation legislation;

definition of ordinary time earnings;

contribution to be made into specific fund(s);

eligibility;

employer contributions;

voluntary employee contributions;

exemptions.(2)

The government proposes with its superannuation
'choice of funds' legislation (3) to provide greater flexibility
for employers and workers. This change is supported by employer
groups such as the Australian Chamber of Commerce and Industry, and
many in the superannuation industry.(4) However, it is opposed by
the ACTU which argues that choice of funds would leave employees
more vulnerable as they would be faced with greater responsibility
for their own investment decisions.(5)

This 'choice of funds' legislation will be in
conflict with existing legislation listing superannuation as an
'allowable award matter.'

The effect of these amendments will be that the
AIRC will not be permitted to deal with disputes about
superannuation by arbitration. The onus will now be on employees to
ensure that any superannuation entitlements (additional to those
specified in the Superannuation Guarantee legislation) are
otherwise incorporated in their terms and conditions of
employment.

Marilyn Stretton
27 February 1998
Bills Digest Service
Information and Research Services

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